Marshall v Police HC Ham CRI 2009-419-82

[2010] NZHC 85

IN THE HIGH COURT OF NEW ZEALAND

HAMILTON REGISTRY

CRI 2009-419-82

ERNEST RONALD MARSHALL

Appellant

v

POLICE

Defendant

Hearing:         3 February 2010

Appearances:  N Brodnax for appellant

S N Cameron for respondent

Judgment:      12 February 2010

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment

with the delivery time of 4.30 pm on Friday 12 February 2010.

Solicitors:

N Brodnax, Hamilton [email protected]

Crown Solicitor Hamilton

MARSHALL V POLICE HC HAM CRI 2009-419-82  12 February 2010

[1]      Following an early plea of  guilty,  Mr  Marshall  was  sentenced  by  Judge

Burnett  in  the  Hamilton  District  Court  on  23  November  2009  to  eight  months imprisonment on a charge of driving with excess breath alcohol, and to two months imprisonment (concurrent) for driving whilst forbidden.

[2]      While    accepting   that   a    sentence   of   imprisonment    was    appropriate, Mr Marshall  contends  that  the  period  of  imprisonment  to  which  he  was  sentenced was too long.  He also appeals against an order disqualifying him from driving for a period of three and a half years.  Again, he contends that this period was too long.

[3]      On 1 July 2009, the appellant was stopped by a police officer while driving

his  motor  vehicle  in  Waitakere.     At  that  time  he  did  not  have  a  current  driver’s licence and was then forbidden to drive until he obtained a licence.

[4]      On  12  August  2009,  in  contravention  of  the  earlier  direction,  the  appellant was driving on State Highway 1 near Karapiro.   He was stopped by a police officer because he was driving at a speed recorded at 116 kph.  A breath test procedure was carried out.  His breath was found to contain 568 micrograms of alcohol per litre of breath.  At the time he explained that an emergency had arisen;  he was driving from Napier to Auckland because his former partner had summoned him to assist her with their  son  who  suffered  from  Aspergers  Syndrome  and  had  become  impossible  to manage.  That explanation is maintained on appeal.

[5]      The  appellant  is  58  years  of  age.   His  previous  driving  record  is  distinctly unimpressive. This  was  his  sixth  conviction  for  a  breath/blood  alcohol  offence. Earlier convictions were recorded in December 1985, March 1989, February 1991, August  1998  and  March  2004.    In  addition  there  are  several  instances  of  driving while disqualified and a number of other driving offences.  He has not before served a sentence of imprisonment in respect of his driving, although he has served several sentences of periodic  detention  for  driving and other offending, and most recently undertaken a period of community work.

[6]      Against  that  background  Ms  Brodnax  realistically  accepts  that  the  learned Judge was well justified in concluding that the time had come for the imposition of a custodial sentence.

[7]      The pre-sentence report is somewhat negative.  Ms Brodnax suggests that the writer of the report may have been rather over-influenced by an interview with the appellant’s former landlady, with whom the appellant seems to have fallen out.

[8]      The report appears to contain somewhat mixed messages. On the one hand, there is an acceptance by the appellant of a long standing habit of what amounts to binge drinking from time to time.  The report writer indicated that at interview, the appellant did not demonstrate any significant remorse for the offending, nor exhibit

an understanding of the antisocial nature of his preparedness over the whole of his adult  life  to  both  drink  and  drive. On  the  other  hand,  the  most  recent  offending involved a breath alcohol reading which exceeded the legal limit by a much lower margin than had occurred in relation to each of his previous offences, and there is some indication that in recent times he has taken steps to avoid re-offending in the manner which has again brought him before the Court.

[9]      In  March  1989  he  was  disqualified  from  holding  or  obtaining  a  driver’s licence for an indefinite period.   In 2004, he successfully completed a Making our Drivers  Safe  Course,  and  subsequently undertook  an  assessment  at  the  assessment centre maintained by the Ministry.

[10]     On  13  June  2006,  the  appellant  was  advised  in  writing  by  Land  Transport NZ, that the Director had removed the indefinite disqualification.   So the appellant was  sufficiently  motivated  to  undertake  the  various  steps  necessary  to  acquire  a driver’s licence.  But he did not have a licence when apprehended in Waitakere, and at the time of this most recent offending he was driving while prohibited.

[11]     The Judge endorsed the concern expressed in the pre-sentence report as to the appellant’s recidivism, and considered that a term of imprisonment was inevitable, the  appellant  having  already  had  every  assistance  in  terms  of  community  based sentences.

[12]     Ms  Brodnax  does  not  cavil  at  that  approach,  but  says  that  the  12  month starting  point  selected  by  the  Judge  was  too  high,  with  the  result  that  the  end sentence of eight months imprisonment was out of line with the authorities.  She asks this Court to reduce the end sentence to six months imprisonment.

[13]     Ms  Cameron  for  the  respondent  submits  that  the  sentence  was  well  within range, and that to accede to Ms Brodnax’s argument would be simply to tinker with the Judge’s sentence.

[14]         Sentencing in this area is quintessentially a matter for District Court Judges who  encounter  such  cases  all  the  time,  and  have  a  thorough  appreciation  of sentencing levels in general and of the factors which must be taken into account in the  course  of  selecting  an  appropriate  penalty.    Reference  is  often  made  in  the present context to the decision of Wild J  in Clotworthy v Police (2003)  20 CRNZ 439  where  sentencing  levels  for  recidivist  drink  driving  were  reviewed. An  end sentence  of  12  months  imprisonment  was  held  there  to  have  been  within  the available range, where the Court was dealing with a seventh excess breath alcohol conviction,  some  seven  to  eight  years  after  the  most  recent  conviction,  and  in  the context  of  a  high  breath  alcohol  level. Several  other  offences  were  dealt  with separately.

[15]     Ms  Brodnax  says  Clotworthy  is  of  limited  assistance  by  reason  of  the associated offending in that case, but I consider the Clotworthy decision itself is of some assistance.  It appears to support the end sentence imposed in this case, which was  perhaps  slightly less  serious  than  Clotworthy  in  that  the  relevant  reading  was lower, and it was the appellant’s sixth offence as opposed to a seventh offence which was before the Court in Clotworthy.   At [20] of Clotworthy Wild J set out some 10 factors which he regarded as relevant to sentencing for multiple or repeat offending. I  do  not  set  them  out  here  but  expressly  take  them  into  account. They  are  well accepted as covering the range of relevant considerations.

[16]     Here, Ms Cameron refers to a number of factors which she contends must be taken into account.  I agree they are of relevance, although I observe that one or two

are simply inherent in the offending itself:

a)        Although charged only with driving whilst forbidden, by reason of his previous                history   the    appellant    was    effectively   driving    while disqualified  because  he  had  never  obtained  a  licence  following  his earlier period of disqualification;

b)When  apprehended  he  was  exceeding  the  speed  limit. That  is  an aggravating  factor,  although  I  accept  that  there  was  no  accident  or injury or other aspect of his driving requiring attention as a significant aggravating factor.

c)        The  appellant  has  received  a  number  of  previous  community  based sentences aimed at his rehabilitation. They have not succeeded  and there has been a degree of unwillingness on his part to deal with the alcohol problems which lie at the heart of his offending.

d)       The appellant’s history of drink-driving offending spans a period well

in excess of 20 years.

e)        The  appellant  has  a  dismal  record  of  breaches  of  Court  order  in respect   of   his   driving.               His   first   conviction   for   driving   while disqualified occurred in 1975.

f)        He  now  has  a  total  of  13  driving  related  convictions  for  offences which  include  failing  to  stop  or  ascertain  injury  after  a  non-injury accident, careless use of a vehicle, failing to give way at a give way sign and assaulting a law enforcement officer.

[17]     Reference to comparable authorities is of only limited assistance in this area. Ms Cameron has, however, referred the Court to three authorities which I mention

for  completeness.   In  Giddens  v  Police  HC  Hamilton  AP15/03,  1  April  2003, Harrison J reduced a sentence of two years imprisonment for a sixth offence to 15 months imprisonment.  There was a high breath alcohol reading in that case.

[18]     In  Barry  v  Police  HC   Auckland  AP101/00,   21  August  2000,  Rodney Hansen J  upheld  a  sentence  of  12  months  imprisonment  for  a  fifth drink  driving conviction and a third conviction for driving while disqualified.   Again there was a high breath alcohol level and there had been recent offending.

[19]     In  Rikiriki  v  Police   HC  Rotorua  AP28/01,  6  July  2000,  Rodney  Hansen J reduced from 12 months imprisonment to six months imprisonment followed by six months supervision a sentence imposed for a sixth drink driving conviction. Again there was a high reading, the last conviction having been some seven years earlier.

[20]     In my opinion, the sentence of eight months imprisonment imposed upon the appellant  was  well  within  range.   I  can  discern  no  error  of  principle.   The  appeal against that sentence will accordingly be dismissed.

[21]     The Judge appears to have been in some doubt as to the maximum penalty available  in  respect  of  the  charge  of  driving  while  prohibited. She  imposed  a sentence of two months imprisonment (concurrent) on that charge, but noted that “if it is a fine only matter then you are convicted and discharged”.

[22]     Counsel are agreed that the offence concerned does not carry a sentence of imprisonment and the maximum penalty is a $10,000 fine.

[23]     In order to regularise the  position,  the  appeal  against  the  sentence  of  two months imprisonment is allowed.  The appellant is simply convicted and discharged

on that charge.   In my view the aggravating circumstance arising by reason of the earlier prohibition is reflected in the penalty imposed on the lead offence.

[24]     I  turn  to  the  appeal  against  the  length  of  the  disqualification  period.       The Judge gave no reason for her decision to select that period, which on the face of it seems high.  The judicial discretion to impose a period of disqualification beyond the statutory minimum must be exercised on a principled basis.  But each case will turn on its individual facts.

[25]     In George v Police  HC New Plymouth AP14/00 29, June 2000, Nicholson J

said at [20] that:

It   is   primarily   a   matter   in   each   case   of   balancing   culpability   and circumstances.   This  progresses  to  consideration  of  other  aggravating  and mitigating  circumstances.   In  combination  there  can  be  a  kaleidoscope  of circumstances of infinite variety.

[26]     Ms Cameron helpfully referred to the summary of principles in Becroft and

Hall’s Transport Law (online looseleaf   ed,   LexisNexis)   at   [SPPA6.1]   and

[SPPA6.4].    Among  the  principles  gleaned  from  the  decided  cases  the  learned authors suggest that the Court may take into account:

a)        The   fact   that   the   fundamental   purpose   behind   the   sentence   of disqualification is the need to protect the public;

b)It is appropriate to distinguish between cases where the manner of an offender’s driving is culpable, and cases where it is not;

c)        In  the  former  instance,  but  not  in  the  latter,  the  offender  might properly be prevented from driving for a substantial period of time;

d)Overall the period of disqualification should be commensurate with an offender’s culpability (as Nicholson J noted in George);

e)        Care should be taken not to disqualify an offender for a greater period than is shown to be necessary; a very long period of disqualification may be shown to be counterproductive, in that it defeats the desired objective and is therefore contrary to the public interest:  see R v Grey (1992)  8  CRNZ  523  at  527.  It  is  sometimes  suggested  that,  if  an offender is unable to see a light at the end of the tunnel, the temptation to flout an order of disqualification may be too great.

[27]     Counsel are agreed that a period of disqualification as long as three and a half years  will  ordinarily  be  justified  only  where  an  offender’s  driving  at  the  time  of apprehension  was  particularly  bad,  and  usually  where  there  has  been  an  accident causing injury.  In the present case there was nothing untoward about Mr Marshall’s

driving, save for the fact that he was exceeding the speed limit to a moderate extent, but not so significantly that the manner of his driving ought to have been reflected in the length of the period of disqualification.

[28]     I consider the disqualification period imposed by the Judge to have been too long  as  a  matter  of  principle.   When  considered  along  with  the  sentence  of  eight months imprisonment the proper period ought        to have been 18 months disqualification.

Result

[29]     For  the  foregoing  reasons  the  appeal  against  the  sentence  of  eight  months imprisonment  is  dismissed.  The  appeal  against  the  concurrent  sentence  of  two months imprisonment imposed in respect of the Court of driving whilst forbidden is allowed.   In  substitution  the  appellant  is  convicted  and  discharged  on  that  charge. The appeal against the order disqualifying the appellant from holding or obtaining a driver’s licence for a period of three and a half years is allowed.   In substitution I impose a disqualification period of 18 months.

C J Allan J